Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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In the days prior to the evolution of the Internet, planning and administering an estate was relatively simple as the physical belongings of the deceased could be carefully sorted through, packaged, and divided according to the Deceased’s testamentary document or the applicable legislation.

In the days since the  Internet has become a common household tool, planning and administering an estate has not been so easy. In a study commissioned by Remember A Charity, The Dying in a Digital Age, it was discovered that four in five people own digital assets, but only nine per cent have considered how these will be distributed upon their death.

According to the study, the nation's digital music collection is worth an estimated £900 million alone.

Three quarters of those surveyed for the study indicated that their digital music and photo collections had strong sentimental value, while eight out of ten said their digital assets were financially valuable.

Rob Cope, director of Remember A Charity said: ''Bank accounts, music and photograph collections are increasingly stored online…meaning families will wave goodbye to a small fortune if details are not passed on.”

There is now an entire cyber existence that both the Deceased and Trustees need to turn their mind to when planning or administering an Estate. For instance, what will become of Facebook, Twitter, Flickr and PayPal accounts? One easy solution is to subscribe to a website called Legacy Locker. Legacy Locker was created in 2009 and it maintains a master list of user names and programs for online bank accounts, social networking sites and document repositories. 

In the digital era, it is important that we consider and make arrangements for how our digital assets will be distributed, and for estate planners, it may be just as important that you consider including in your questionnaire or checklist, a question that forces a client to turn their mind to consider their digital assets. 

Thank you for reading, and have a great weekend.

Rick Bickhram - Click here for more information on Rick Bickhram.

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The cover story in the year-end edition of The Economist was entitled: "The U-Bend of Life:  why, beyond middle age, people get happier as they get older."   Personally, I was more captivated by the abbreviated title: "Why Life Begins at 46."  Ever hopeful, I snatched up a copy!

Very simply, the thesis is that the bottom of the "U" is the well-known phenomenon of the midlife crisis and that, after working through their acceptance that dreams will likely not be fulfilled, people become happier.  Ironically, the explanations for this phenomenon range from the downright depressing ("unhappy people die early") to the somewhat less depressing ("because the old know they are closer to death...they grow better at living for the present").  As noted by the author, such studies of happiness have given rise to such policy initiatives as Bhutan's Gross National Happiness ("GNH") assessment.   

The U-Bend Thesis is an enticing prospect for those of us in their mid-forties who have heretofore preferred denial to getting older. And, in closing, it seems fitting to repeat a famous quote attributed to Maurice Chevalier that appears in the article: "Old age isn't so bad when you consider the alternative."

Have a great weekend.

David M. Smith - Click here for more information on David Smith.

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We have blogged previously on section 35 of Ontario's Trustee Act, which relieves a trustee who has committed a technical breach of trust but has otherwise acted honestly and reasonably.  This provision may not be available to a trustee who, confronted with an ambiguous situation, fails to seek the advice and direction of the court, as is the trustee's right under section 60(1) of the Trustee Act.  Section 60(1) states:

60. (1) A trustee, guardian or personal representative may, without the institution of an action, apply to the Superior Court of Justice for the opinion, advice or direction of the court on any question respecting the management or administration of the trust property or the assets of a ward or a testator or intestate.

Justice Cullity describes the applicable principles in Merry Estate v. Plaxton, 2002 CanLII 32496 (ON S.C.) at paragraph 35:

"[35]  On the question of costs, I am satisfied that no criticism can properly be directed at Mr. Meredith for bringing this application. Section 60 of the Act entitles trustees to seek the opinion, advice and direction of the court with respect to the administration of a trust and, in cases where significant doubt exists as to the scope of their powers and responsibilities, they may not be protected under section 35 if they fail to do this. Although such applications must not be made frivolously – and not merely to relieve applicants from making decisions that are part of their responsibilities under the terms of the trust - they are entitled to have their costs paid out of the trust property if, in the opinion of the court, the application was properly brought. I believe this is such a case."

Merry Estate v. Plaxton also contains a discussion of a trustee's right of indemnity with respect to costs properly incurred, and the relationship between this right of indemnity and litigation cost awards for trustees from trusts.  In that application for the court's advice, the trustee Mr. Meredith was awarded full indemnity for his legal expenses in bringing the application.  

Have a great day,

Chris M. Graham - Click here for more information on Chris Graham.
 

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Chinese real-estate tycoon, Yu Pengnian, announced this past April that he was donating the last $500 million of his fortune to his charitable foundation on philanthropy. He was asked by a reporter, whether his children were angry about his donations and responded by stating: “They didn’t oppose this idea, at least not in public.”

|It is not uncommon for billionaires to donate their fortune. For instance, Warren Buffet and Bill Gates started a campaign called "The Giving Pledge." At that time, they had four billionaires pledge to give away half of their fortune upon their death.  Now there are 40. My colleague, Nadia Harasymowycz, recently blogged on this topic, which can be found here: Leaving it all to Charity – A Good Plan or an Estate Litigator’s dream.

The idea of giving away your fortune is a strong shift from the traditional idea of passing down your wealth, from generation to generation. Why this switch in estate planning? Yu stated: “If my children are competent, they don’t need my money. If they’re not, leaving them a lot of money is only doing them harm.”

Yu’s message to wealthy families put simply: “Too many wealthy parents focus on preventing their children from failing. But in doing so, they also deprive their children of the joys of self-made success.”

Thank you for reading,

Rick Bickhram - Click here for more information on Rick Bickhram.

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We repeatedly hear about the grim details behind Alzheimer’s disease. In a previous blog titled “The Grim Toll of Alzheimer's”, I touched on a reported study called The Rising Tide: The Impact of Dementia in Canadian Society.   This study has cited that as our population continues to age, the number of people suffering from Alzheimer’s disease is expected to double to 1.25 million within 30 years. Again, another grim statistic.

Today, I blog on another Alzheimer’s study, which fortunately does not have such grim details. In a recent article, Lesley Ciarula Taylor states that specialists in Rochester, Minnesota have discovered “a cheap and easy memory test can predict who will develop Alzheimer’s disease with almost perfect accuracy.” The Free and Cued Selective Reminding Test is used to distinguish normal aging memory loss from a degenerative brain disease. 

Taylor states, “the cost is very low, much lower than an MRI. The hope is to be able to identify the disease as quickly as possible.”

There is no cure for Alzheimer’s. Diagnosing the likelihood of being vulnerable may not necessarily lead to a cure, but at least specialists in this area can now ask new questions that potentially could lead to different angles on handling this disease.

Thank you for reading,

Rick Bickhram-Click here for more information on Rick Bickhram

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The Toronto Star recently reported on Alzheimer’s disease, stating that “cases of the mind-robbing disease will more than double to 1.25 million within 30 years as baby boomers age”. 

With the numbers pointing upward as the population grays, a recent report by the Alzheimer Society, entitled Rising Tide: The Impact of Dementia on Canadian Society suggests the following steps to help reduce the impact of dementia:

1.                  Prevention programs based on healthy diet and physical activity that can delay the onset of dementia by two years, with a potential cost saving of $219 billion over the 30-year period.

2.                  Enhanced skill-building and support programs for family caregivers, many of whom suffer financial hardship because they must leave jobs to look after a relative with dementia.

3.                  Assigning a case manager to each newly diagnosed dementia patient and their caregivers, which could help the person remain at home longer and lessen the strain on the long-term-care system.

Today, annual funding for Alzheimer’s is approximately $24 million. The Toronto Star reports that if “nothing changes, this sharp increase in the number of people living with dementia will mean that by 2038, the total costs associated with dementia will reach $153 billion a year”. 

We have already seen a substantial influx with respect to Will challenges, particularly because there has been a big question mark about the testator’s capacity. The grim realty is that this will be a continuing problem that Estate Solicitors are going to have to tackle.

Thank you for reading.

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

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Death planning now includes options like buying your coffin at your favourite retailer, purchasing jewellery keepsakes that hold a loved one's ashes, and even treating mourners at your funeral to ice cream.

For my final blog of the week, I thought that it would be appropriate to discuss Death Planning. In my limited experience, I recognize an ingredient of success is the ability to adapt to change.   Changing ideas about traditional funeral and burial practices are bringing change to this industry. A recent article in the New York Times by Gabrielle Glasser discusses personalizing your funeral service. 

Despite being in financially weary times, Glasser notes that your funeral is your last chance to be a big spender. Peter Moloney and his six brothers own six funeral homes on Long Island and have catered to customers who wish to have a customized send-off. For instance: “Bike lovers pay an extra $200 or so to take their last ride in a special hearse towed by a Harley-Davidson motorcycle. Gardeners select wildflower seed packets to include with their funeral programs. One gentleman wanted to be remembered for comforting his grandchildren with ice cream, so, after the funeral, mourners were greeted by a man in a Good Humor truck, handing out frozen treats.”

I have yet to hear of a funeral home that caters to customized send-offs north of the border, but I presume that we may be a little bit more reluctant to abandon our traditional religious funerals in favour of secular ceremonies.

Before I sign-off, I would like to point out that tonight is the final game of the Stanley Cup Playoffs. Two of the greats will be playing tonight for Pittsburgh, Sid the Kid and Evgeni Malkin. If you tune in tonight, I am sure that you will get the opportunity to see them outskate the older, and slower Detroit Red Wings. Looking on with anticipation…

Go Pittsburgh!

Rick Bickhram

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In our ongoing review of the phenomenally successful book, The Long Tail, we both thought long and hard about Anderson's theory in respect of why we personally have decided to blog and podcast. As we see it, consistent with our general philosophy that providing quality content is the best way to demonstrate our own professional abilities, The Long Tail considers our approach to business development with Anderson providing some interesting insight on the topic.

At page 73 of The Long Tail, Anderson asks "Why do they do it?" Why does anyone create something of value without a business plan or even the prospect of a pay cheque? This question is a key to understanding The Long Tail, partly because so much of what populates the curve does not start with commercial aim. In fact, as we have thought for some time, the traditional business model needs to be reworked and we personally avoid the one-hit wonder approach to our business plan. Anderson goes on to explain this idea at page 74 of his book, when he cites Tim Wu, a Columbia law professor, who calls this phenomenon (at page 74 of his book) "exposure culture", pointing to blogging as an example:

The exposure culture reflects the philosophy of the Web, in which getting noticed is everything. Web authors link to each other, quote liberally, and sometimes annotate entire articles. E-mailing links to favourite articles and jokes has become as much a part of American work culture as the water cooler. The big sin in exposure culture is not copying, but instead failure to properly attribute authorship. At the centre of this exposure culture is the almighty search engine. If your site is easy to find on Google, you don't sue - you celebrate.

We have provided at www.hullandhull.com a variety of articles that our firm has written over the years, plus a tremendous amount of resources in respect of articles that have been written by others. Futhermore, Ian and I believe that our new webpage (which will be arriving shortly) and our blogposts and podcasts only further demonstrate our commitment to always providing good content.

All the best, Suzana and Ian.